Issue: May a
Judicial Official serve on a statute-created
advisory committee to an Executive Branch official
in the following circumstances: (1) the Executive
Branch official’s department or agency regularly
participates in proceedings in state courts, both as
a litigant and as a service provider, and
specifically participates in proceedings before the
Judicial Official (2) the statute creating the
advisory committee does not mandate or specifically
provide for the inclusion of a Judicial Official as
a member, and (3) the advisory committee has broad
responsibilities, including inter alia, providing
recommendations to the Executive Branch official
regarding programs, services and legislation to
improve the department or agency’s performance;
providing policy interpretation and guidance to the
public; assisting and monitoring the department or
agency with its planning and the implementation of
its plans; and issuing reports to the Executive
Branch official and the Governor as the advisory
committee deems appropriate?

Additional Facts: The Executive Branch official’s department
or agency is responsible for a wide range of
programs and services including, but not limited to,
providing services for mentally ill and emotionally
disturbed clients, establishing work programs,
performing data collection, auditing and outreach,
as well as providing services to persons involved
with the courts. The department or agency has also
been the subject of federal litigation and federal
court supervision for many years. A significant
percentage of the advisory committee members are
family members of current or former clients of the
Executive Branch department or agency.

Response:
Three of the four Committee members in attendance
determined that the Judicial Official’s service on
the advisory committee would be prohibited by Rule
3.4 of the Code of Judicial Conduct, which provides
that “[a] judge shall not accept appointment to a
governmental committee, board, commission or other
governmental position, unless it is one that
concerns the law, the legal system, or the
administration of justice.”

The Committee majority
emphasized that, however salutary for the public a
judicial official’s service on governmental
committees or commissions may be, Rule 3.4 prohibits
such service unless the commission “is one that
concerns the law, the legal system or the
administration of justice.” Comment (3) to the rule
states that it is “intended to prohibit a judge from
participation in governmental committees, boards,
commissions or other governmental positions that
make or implement public policy unless they concern
the law, the legal system or the administration of
justice.”The Committee majority adopted the
position, as articulated in ethics opinions from
other jurisdictions, that in order for a
governmental committee or commission to qualify as
one that concerns the law, the legal system or the
administration of justice, “there must be a direct
nexus between what a governmental commission does
and how the court system meets its statutory and
constitutional responsibilities – in other words,
how the courts go about their business.”
Massachusetts Advisory Opinion 98-13. See also Utah
Informal Advisory Opinion 98-11; Florida Advisory
Opinion 2001-16; U.S. Advisory Opinion 93 (1998);
Indiana Advisory Opinion 2-01. Applying the “direct
nexus” standard to the facts presented, the
Committee majority concluded that the scope of the
advisory committee’s responsibilities (as described
above) far exceeds the range of activities within
the scope of the exception to Rule 3.4.

The Committee majority also
expressed concern about the possibility of an
appearance of impropriety under Rule 1.2, as well as
conflict with the provisions of Rule 3.1(1), (2) and
(3), that could arise from the Judicial Official’s
service on the advisory committee, based upon the
following factors: the membership of the advisory
committee, the Executive Branch department’s or
agency’s role as a frequent litigator and service
provider in proceedings in the state courts and in
proceedings before the inquiring Judicial Official,
and the fact that the Executive Branch department or
agency is the subject of federal litigation and
federal court supervision. See generally JE 2008-24,
JE 2009-10 and JE 2010-05.

One of the Committee members
dissented from the view of the majority of Committee
members. The dissenting Committee member supported a
broader interpretation of the phrase “the law, the
legal system, or the administration of justice”, as
has been adopted by some jurisdictions, and would
have found the advisory committee to fall within the
exception provided by Rule 3.4. That member cited
Comment (1) to Rule 3.4, which acknowledges the
value of judges accepting appointments to entities
that concern the law, the legal system or the
administration of justice, and the approach taken by
such states as South Carolina, Utah and Alaska,
which on occasion have permitted a judge to serve on
a governmental commission with a mission that
extended beyond the law, the legal system or the
administration of justice to issues of a legislative
or executive nature, only if the judge is able to
limit his or her involvement narrowly to those
matters dealing with the administration of justice
by, for example, just serving on a subcommittee or
limiting participation to matters directly
concerning the courts or the administration of
justice. See generally South Carolina Opinion
8-1996, Utah Informal Opinion 94-2 and Alaska
Opinion 2001-01.

The Committee noted that this
opinion involves conduct subject to Rule 3.4, not
Rule 3.2, and that its opinion does not necessarily
reflect how the Committee may construe Rule 3.2.